Spinnell v. Goldberg
| Citation | 275 S.W. 775,219 Mo.App. 471 |
| Parties | JACOB SPINNELL, Respondent, v. JOSEPH GOLDBERG & JACOB GOLDBERG, JR., Partners, Doing Business Under Firm Name of J. GOLDBERG & SON, Appellants. * |
| Decision Date | 29 June 1925 |
| Court | Court of Appeals of Kansas |
Appeal from the Circuit Court of Jackson County.--Hon. O. A. Lucas Judge.
AFFIRMED.
Judgment affirmed.
Jules C. Rosenberger, Rollin E. Talbert and Dupuy G. Warrick for respondent.
Morrison Nugent, Wylder & Berger for appellant.
This is an action in damages for personal injuries alleged to have been sustained by plaintiff through negligence of defendants.
Defendants are partners doing business under the name of J. Goldberg & Son, engaged in the operation of a large plant in Kansas City, Mo., for the manufacture of structural steel, ornamental iron and wire and allied products. Plaintiff had followed the trade of an ornamental iron worker for about twenty-seven years and for about six years had been employed by defendants in that capacity. For several weeks prior to the accident in suit, he had been engaged in the construction of an ornamental iron canopy to be placed over the entrance to the building of the Kansas City Club.
On March 4, 1922, the date of the accident, the framework of the canopy had been completed and plaintiff was engaged in fitting to the framework leaves and other ornaments of iron. For convenience of the workmen the canopy had been placed upon wooden carpenter horses, about three feet in height. The canopy frame was about two feet six inches high, thus making the top of the frame as it rested on the wooden horses about five feet six inches above the floor. In fitting these ornamental parts to the canopy it was necessary to grind smoothly the surfaces which were to be fitted together. The grinding was done by means of an automatic grinding machine operated by compressed air, and weighing twenty-five to thirty pounds. It was about two feet long and a foot thick, and on one end was a handle containing a trigger by manipulation of which the power was turned on and off. At the other end was attached an emery wheel which was caused to revolve by application of the power, the machine being held in the hands of the operator while in use.
In order to do the grinding it was necessary for the workman to be elevated above the floor sufficiently to enable him to reach the top surface of the canopy frame with the grinding machine. Plaintiff went to Joseph Goldberg, senior member of defendant partnership, and told him that he needed something to stand on in doing this work. Goldberg then produced a stool from the blacksmith shop and told plaintiff to use it. Plaintiff testified he noticed the stool was "shaky," that he called Goldberg's attention to such condition and asked for a stronger stool; whereupon Goldberg directed him to use the stool in question and assured him that he could safely use it, but that a new and strong one would be obtained for his use. The testimony shows the canopy was being rushed to completion without unnecessary delay. The stool in question was about sixteen to twenty-four inches high (there being some conflict on this point), with a top twenty to twenty-two inches square. It had four legs which the evidence shows were loose, uneven and crooked, and that the stool did not make a secure and solid foundation. This condition was admitted by defendants. It appears, also, that the stool was old and had been used in and about the plant of defendant for a number of years, and that its legs were not braced.
Plaintiff proceeded to use the stool, as directed by Goldberg, and continued to use it for about two weeks, when the accident occurred. While so using the stool and standing thereon with the grinding machine in his hands, the stool "broke--gave way" precipitating plaintiff backward to the floor, causing him to strike his head against a box and his back on a wire-covered hose which supplied air to the grinding machine, and the machine fell upon his abdomen. He was rendered unconscious and was carried into defendant's office, from whence he was taken in an automobile to defendant's surgeon, Doctor Anderson, who made an examination and directed that X-ray pictures be taken of plaintiff's back. These pictures, if made, were not offered in evidence. From the office of Doctor Anderson plaintiff was taken to his own home, where he was confined to his bed for about six weeks, and thereafter he was visited by physicians.
The petition alleges negligence of defendants in failing to furnish plaintiff a reasonably safe place to work and in requiring him to use a defective and unsafe appliance in this, to-wit; that in the performance of his work, he was required by defendants to stand on top of a certain wooden stool furnished and provided for his use by said defendants and at the same time hold and operate a grinding machine run by air pressure; that plaintiff while in the performance of his work and while standing on said stool holding and operating said grinding machine in compliance with defendants' orders and directions, was thrown from the said stool to the floor on which said stool sat, with great force and violence, as a result of said stool suddenly giving way and falling over; that the giving way and falling of said stool was due to its defective condition in that said stool was old, worn, and in a shackly condition, the legs were loose, out of line, uneven, and insecurely attached to the top part of said stool so that said stool was shaky and wobbly and made an unsteady, insecure and treacherous footing for plaintiff; that defendants negligently ordered and directed plaintiff to use said stool and stand on said stool in the performance of his work; that defendants negligently assured plaintiff that said stool was safe and that he could safely stand on it in the performance of his work; that the condition of said stool was known to defendants, or could have been known to defendants, by the exercise of ordinary care, in time to have remedied or repaired the same or to have substituted some other appliance for plaintiff's use.
The amended answer is a general denial with pleas of contributory negligence and assumed risk. The reply is a general denial. Trial to a jury resulted in a verdict for plaintiff in the sum of $ 5,000. Motions for new trial and in arrest, duly filed, were overruled and judgment was entered in accordance with the verdict. Defendants appeal.
In support of the appeal, it is charged, first, that the court erred in overruling defendant's demurrer, offered at the close of plaintiff's evidence. It is argued that so far as the evidence of plaintiff shows the cause of plaintiff's fall is purely conjectural and is not shown to have been due to any negligence of defendants. And in this connection, it is urged there was no evidence produced, nor does the petition allege, that the dimensions of the stool were not proper and sufficient for the purposes for which the stool was used.
Obviously the question of the dimensions of the stool can only be considered under the allegations of the petition to the effect that defendants negligently failed to furnish plaintiff reasonably safe appliances with which to work. The petition does not allege that the dimensions were deficient, nor is there any proof directed to that point, so that we may dismiss this question with the observation that the dimensions of the stool were not an issue in the case. The gravaman of the action is that defendants failed to furnish plaintiff a reasonably safe place in which to work and failed to furnish him with reasonably safe appliances with which to work.
As to the condition of the stool, plaintiff testified that the stool was "shaky, wobbly and unsteady;" that it did not furnish a solid foundation for use in operating the grinding machine; that he had objected to its use, but was directed by Goldberg to use it, and that it would be safe if plaintiff were careful; that under this protest he used the stool with injurious results.
Under the rule that in considering a demurrer, the evidence of the plaintiff must be accepted as true and that he is entitled to all reasonable deductions therefrom, we shall proceed to a further consideration of appellant's first charge of error that the demurrer offered at the close of plaintiff's testimony should have been sustained.
It is charged there is no causal connection shown between the alleged injury of plaintiff and the negligence of defendants. Defendant J. Goldberg testified that he knew of the defective condition of the stool, to-wit that the legs were loose and wobbly and did not make a solid foundation upon which to stand in using the grinding machine. So that, in fact, there is no dispute as to the defective condition of the stool and its unfitness for the use to which plaintiff was required to put it. Plaintiff testified that while he was using the stool it "gave way--broke down," and precipitated him to the floor. We think this evidence was sufficient to take the case to the jury under the allegations of the petition. Plaintiff claims, and we think properly, that the case of Dyrcz v. Packing Co., 194 S.W. 761, decided by this court, is directly in point. [See, also, Sullivan v. Railroad, 107 Mo. 66, 17 S.W. 748; Duerst v. Stamping Co., 163 Mo. 607, 63 S.W. 827.] There was no error...
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